Permissiveness or Consistency? Democratic cutbacks in Member States vs. the unity of the EU

German-Polish European BLOG

Permissiveness or Consistency? Democratic cutbacks in Member States vs. the unity of the EU

6 October 2017

Kai Olaf Lang *

There is a growing worry about the state of democracy in the European Union Member States. Particularly the developments in Hungary and in Poland have raised concerns and sparked intensive debates about illiberal backsliding and de-democratization. For many, it is particularly disquieting that the EU, which defines itself as a community of values and principles has not been able to effectively tackle and limit such processes in its Member States. Proponents of a more consistent protection of democracy in the EU have denounced the lack of appropriate instruments to hedge against deficits in the rule-of-law and democracy. Once the EU had improved its toolkit, the blame for an insufficient political will to curb cutbacks in democracy was put on specific Member States. Whereas both arguments (and mainly the second one) have some validity, there are more fundamental factors, which complicate attempts to implement a more consistent democracy policy within the Union.

First, democracy has many faces. This holds true not only for the many varieties of democracies: from semi-democratic copies to effective pluralism and competitive policy-making, but also for what is usually called liberal democracy. Hence, advocates of political reform in EU Member States can easily argue that there is no single and binding model of democracy they have adhere to.

Democracy has many faces. This holds true not only for the many varieties of democracies: from semi-democratic copies to effective pluralism and competitive policy-making, but also for what is usually called liberal democracy.

Second, the EU is a polity based on the permanent tension between shared powers and that what is at the discretion of the Member States. When it comes to issues of their democratic modus operandi, the situation is particularly contentious and sensitive. Here, there is a competition between common values and “non-conferred competencies”, which explicitly include “fundamental political and constitutional structures”. Referring to the right to define their “constitutional identity”, governments and parliamentary majorities in Member State have a heavy weapon at their disposal to fend off EU action regarding changes to the political system.

Third, governments which initiated or carried out major procedural or institutional changes in their political systems have also applied their domestic reading of democracy at a more general EU level: in Hungary and even more visibly in Poland, governments have pursued a sort of “legitimacy first” approach. According to this philosophy, democratically elected parliaments and governments accountable to them are entitled to change not only policies, but also the rules of the game. More particularly, if there is a conflict between the will of the majority and the legal situation, there is a preference for “the political solution”, which has a much higher level of legitimacy than law-based restraints, whose observance is regarded as “legal impossibilism”.

In Hungary and even more visibly in Poland, governments have pursued a sort of “legitimacy first” approach. According to this philosophy, democratically elected parliaments and governments accountable to them are entitled to change not only policies, but also the rules of the game.

With these factors in mind, there is little wonder that the EU has so far only developed a limited capacity to shelter Member States’ democracies from being undermined. And, for sure, there will be no easy way to overcome these barriers. The crucial issue is certainly a new commitment to democracy. In this respect, the Rome Declaration has been a missed opportunity because it gathered Member States behind a broad range of important values, without conveying a new message of obligation. It is understandable that, for pragmatic reasons, a diverse community has to give leeway to its members for the interpretation of specific norms. But with regards to basic foundations of democracy, it is necessary to define the core of what this entails in practice, irrespectively of the different faces of European democracies. Therefore, Member States should not only be faithful to general principles like democracy and rule-of-law, but to their specific building blocks, such as media pluralism, an unrestricted existence of civil society, the division of powers and “fair play” during elections.

In consequence, it may be said that the EU needs a sort of a practical “acquis democratique”. This is, first of all, a political affair. Of course, it is necessary to have a clear legal appraisal of what is going on in the Member State that is being investigated. Nevertheless, formal legalism alone will not help. Last years’ experiences have shown that Member States that go for the accumulation of power can easily take on legal battles, e.g. with the European Commission. By turning a bigger political issue into a series of smaller legal ones, Member States are often (through some smart adaptations) able to comply with EU law and at the same time maintain the content of the original act. Moreover, many practices decreasing democratic fair play can be implemented without changing the law at all. Thus, what the EU needs, is the ability to assess the Member States politically – without falling into the trap of making this a party-political or ideological assessment.

With regards to basic foundations of democracy, it is necessary to define the core of what this entails in practice, irrespectively of the different faces of European democracies. Therefore, Member States should not only be faithful to general principles like democracy and rule-of-law, but to their specific building blocks, such as media pluralism, an unrestricted existence of civil society, the division of powers and “fair play” during elections.

Finally, the EU and its Member States have to soberly estimate the advantages of action and the costs of passivity. If the EU remains permissive to democratic irregularities among its members, it risks the proliferation of de-democratization toward the other states of the community, it weakens its capability to act as a normative actor internally and externally, and it agrees to the concept of a loose conglomerate rather than a genuine political union. On the other hand, if the EU evolves toward more democratic strictness and the sanctioning of democratic non-compliance, this increased normative solidity could lead to a point where a country might be in a position of frozen membership or even prefer to “leave the club”.